A recent decision from Maryland’s highest court highlights the rapidly evolving state of the law relating to gay and lesbian parents. The Maryland opinion in Conover. v. Conover also has a place in another evolving trend in custody law – towards increasing recognition of the child’s need to have on-going contact with the “psychological” or “de facto” parent, who may have no legal standing with regard to a child.
The factual background for the case is as follows: A same-sex couple, Michelle and Brittany Conover, had a son, Jaxon, in the context of a stable but non-marital relationship. They later married in the District of Columbia when Jaxon was about six months old. Although as the biological mother, Brittany was the only legally-recognized parent, Michelle actively participated in parenting Jaxon and Brittany consented to and fostered that relationship. However, after Michelle and Brittany separated and Michelle sought visitation with Jaxon, the trial court in Washington County concluded that she did not have standing for purposes of seeking legal custody and visitation rights. [Note: The concept of “standing” is a complex legal doctrine that, in essence, confers upon a particular party the right to bring or participate in a legal case.]
On appeal, the court reversed a ruling issued only eight years earlier with similar facts, holding that it had been “clearly wrong.” The court said that, having assumed a parental role which had been facilitated by the biological parent, Michelle is a “de facto parent” who stands on a very different footing from other third parties seeking visitation or custody of a child. The Court adopted a four-part test to determine whether an individual is a de facto parent giving standing to a parent who: (i) with the consent of the child’s legally recognized parent established a parental relationship with the child, (ii) lived in the same home with the child, (iii) assumed significant obligations of parenthood, and (iv) was in a parental role for a length of time sufficient to have established parent-child bonds with the child.
What does this mean?
Simply put, Conover v. Conover paves the way for a non-biological, non-adoptive parent in Maryland who is seeking to maintain a relationship with a child after the parents’ relationship has ended to have standing as a de facto parent for custody and visitation rights without having to meet the oft-insurmountable burden of proving unfitness or “exceptional circumstances.” The court’s ruling creates a remedy for a whole class of parents who, like Michelle, have parented a child without having a legal relationship to the child.